Thursday, February 12, 2015

"I strongly feel there is need to look at our
seriously flawed electoral system in our current Constitution..., but both
(Nawakwi and HH) are excluded from contributing meaningfully to the governance
of this great country by our divisive and corruption-riddled electoral
system... The 'winner-takes-all', first-past-the-post system is a serious
hindrance to democracy and must be consigned to the garbage bin of
history."

- Alexander Chikwanda, Minister of Finance.

(Source: Zambia Daily Mail, January 29, 2015. p10)

The January 20, 2015 presidential elections have come and gone. What is
on most people’s lips is tribalism. If only many know that, only a hungry mangy
dog when beaten does not snap at its master. Instead, it puts its tail between
the legs, and licks the master’s feet. So exactly who was tribal? Any way that
is a story for another day.

It is the lullaby, that the election was rigged, that matters most to me.
And if you sat on the pendulum side of the winner, it was just another old
lullaby. However, the consequences can be dire. As in the lyrics, a profound
call to revisit our election results management exists.

When Andrew Mazoka and General Godfrey Miyanda sung the elections have been rigged lullaby in
2001, we saw some significant changes on how results are to be managed. This is
because there was partial implementation of the recommendations of the 2003 Electoral Reform Technical Committee. Still, more needed to be done, but we went
to sleep.

In 2008, Michael Sata woke
us up from our slumber when he sung the same lullaby again! According to a
Wikileaks cable on the petition (which was discontinued), the ground of the
petition were premised on the PF’s claim that, “.. electoral officials had rigged the results in areas where PF
polling agents were not present, including in many district centres that
collected and transmitted constituency results”.

That the actual polling day activities of January 20 can be deemed
credible is not debatable. The eventual elections results management itself is undoubtedly
the same old lullaby.

The expectation that determined and declared results as tallied from
polling stations, will not again, raise
concerns from contesting parties on the final constituency level
presidential results declared by the Commission was a fallacy. The authenticity
of the Constituency level results declared at Mulungushi Conference Centre was
yet again a walk into the past. The opposition observed that some results forms
did not bear the seal of the Commission; were not witnessed; had witness
signatures, but no organisation or political party identified; or had witness
signatures, but no identifiable party and its agent.

The Commission clearly found itself on the see-saw of the absurdities in
our laws. The Electoral Act No. 12 of 2006 provides that the announcement of
results at the polling is witnessed by political party polling agents, election
monitors and observers, and, in Section 72, the Act does provide political
party agents an opportunity to object when irregularities are observed during
counting of votes and determination of provisional results. Legally, this means
any concern raised is fait accompli
as the results determined and declared are valid, since no objections were
raised when they needed to.

Strangely, the Electoral (General) Regulations, Regulation 48 form used
(Announcement of results of the poll –
presidential) provides for witness signatures and identification of
witnesses’ respective organisations. Yet, contradictorily, Section 36(2) of the
Act does NOT mean that a results declaration form is only valid and admissible
by the Commission if it is signed by a party agent. This is because, this section
prescribes that the “absence of an election or polling agent from
a place where any electoral proceeding is being conducted shall not invalidate
those proceedings”. Sic.

Further, the Electoral Commission started announcing results even when
in some polling stations voting had not yet commenced. The UPND raised concern
that doing so will influence individuals that are yet to vote. This concern
arose, as at the time the contest between the leading parties (PF and UPND) was
so close that even a difference of 5,000 votes could influence the outcome of
the elections. This was deemed contrary to the provisions of the Electoral Act
Section 74(3)(b), which is the Commission can only announce results without having
received the results of all polling stations if the outstanding results are not
likely to influence the overall result outcome. The Commission granted the
request and stopped the announcement of results until all eligible voters had
cast their vote.

Significant, is that the Commission was legally on firm ground. Section
74(3)(a) also provides that “the
Commission may determine and declare the result of an election without having
received the results of all polling stations, if to wait for the receipt of the
result from every polling station would unduly and unreasonably delay the
determination and declaration of the result of that election”.

It is important to note the two terms, unduly and unreasonably delay. An unduly and unreasonable delay in the
determination and declaration of the result of a presidential election does not
arise in Zambia. There is no legal provision for when or within what timeframe
presidential election results should be declared. The only provision is that
results should be determined and declared
by adding together the results received from all polling stations
immediately after the close of polling (Electoral Act, Section 74(1). This was
not the case at the time, anyway.

In hindsight, the January 20 is another election that taught us the
past, but as a people we never seem to learn. The January 20, results
management was a repertoire of the ECZ we have come to know so well. Perhaps, it is time we strongly lobbied for implementation of the 2003 Electoral Reform Technical Committee recommendations that: Party
agents or other authorised persons be permitted to sign and receive copies of
the polling station result forms, which should be posted for public view at the
polling station and that results should only be announced after they have been
signed by party agents; results
sent by the Returning Officers to the ECZ be countersigned by monitors and
polling agents, to avoid suspicion of alteration of election results after the
results have been counted and aggregated at the collation centre; and
that ECZ should set a date
of official announcement of final results (Report of the ERTC, 2004, page 64).

In retrospect, the lessons learnt for review of the country’s electoral
system, were already learnt. The country’s plethora of constitutional reviews
and electoral reform processes demonstrate considerably that there is a need
for change. What continually lacks, is the political will to implement the many
well intended recommendations from the reviews. Could be that the status quo is desirable as the obtaining
rules of governance and elections seemingly favour those in government and
protect the interests of the political party in power.

Undoubtedly thence, the lyrics of the election rigging lullaby should
not just be glossed over. It is not an old lullaby. The lyrics are a vote of no
confidence in our election results management. This is undesirable.